The Judge and the Wiretap Program

Published: August 19, 2006

Now, finally, a federal judge has the courage and the nerve to rule that the White House's warrantless wiretapping program on Americans is both illegal and unconstitutional.

Those of us concerned about the continuing erosion of civil liberties and the rule of law by this administration, on the justification that this is being done in the name of national security and for the protection of the American people, should thank Judge Anna Diggs Taylor of the United States District Court in Detroit.

Her clear ruling stands out in sharp contrast to a Congress that has simply supinely acted for so long as the rubber stamp of this White House.

But we may not be out of the woods yet. Attorney General Alberto R. Gonzales quickly announced that he was going to appeal Judge Taylor's ruling. As you point out, her ruling is well founded in law and in the Constitution. One hopes it won't be overturned.

We can expect the attorney general to push this matter to the Supreme Court. There, nobody can predict what the outcome will be.

Once again, the knee-jerk response of the administration and ruling party is to label the judge who ruled against the warrantless eavesdropping program a ''liberal,'' deride the opinion and state that this ruling would ''disarm America during a time of war.''

There is no doubt that a wiretapping program is necessary. But what the proponents of the National Security Agency's warrantless program consistently don't acknowledge is that a program exists that eliminates many of the concerns enumerated in the ruling.

The intelligence community does not need to wait for a court order to initiate a wiretap. The attorney general can authorize an emergency order and has 72 hours to seek a court order.

Given this extended period of time to gather additional evidence, along with the evidence that provoked the wiretap, it does not appear to be an unreasonable burden to permit some nonexecutive oversight to occur. Nor will complying with the law ''disarm America.''

Tony Curtis
Chicago, Aug. 18, 2006

The writer is a lawyer.

To the Editor:

The ruling by Judge Anna Diggs Taylor of United States District Court that the government's warrantless wiretapping program is unconstitutional is out of line with the times.

Given a situation similar to 9/11, imagine that a hijacker on one plane is on the phone with a hijacker on another plane. Law enforcement would need a warrant or an order from the attorney general to tap their phones to find out where they're headed? The attacks on 9/11 took only about an hour. Every second counts.

What's most absurd is that the president has the authority to order the Air Force to shoot down the plane, but his critics argue that he doesn't have the authority to tap the phones on that same plane without permission. I'm not a lawyer, but there's something wrong with this logic.

Josh Greenberger
Brooklyn, Aug. 18, 2006

To the Editor:

It's happened many times before and undoubtedly will happen again: a trial-level judge strikes down a statute and the news media treat the decision as an event of great importance.

Actually, lower court legal rulings are given no deference by higher appeals courts, which write on a clean slate.

Of course, a lower court opinion might be so well written as to be persuasive to the appellate judges, but so could a law review article or any other print medium. That a judge happened to perform the analysis will not be especially weighty to the higher court.

Peter Lushing
New York, Aug. 18, 2006

The writer is a professor at Benjamin N. Cardozo School of Law.

To the Editor:

It is gratifying that a judge followed the rule of law and the Constitution, declaring it illegal for the Bush administration to spy on citizens without warrants.

In other times, this would have been a ''no brainer.'' Instead, the response these days is for the administration's loyalists to attack the judge's politics.

It is a shame that this administration projects its own aspirations to politicize the judiciary onto objective and respected judges who work hard to uphold the law as it is, not how the administration would like it to be.

For this administration to call the judiciary ''activist'' is beyond hypocrisy, and a result of its own frustration at not having fully achieved a rubber-stamping judiciary branch that behaves like the legislative branch today.

Claiming that enforcing the Constitution will prevent us from being safe is dirty politics. Filling in the huge gaps in our homeland security might be a wiser strategy.

Laurie Gindin Beacham
New York, Aug. 18, 2006

To the Editor:

Thank goodness we have activist judges to help rein in the abuses of activist presidents!